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Tarunanganath Banerji Vs. Premnarayanlal Raizada - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal274
AppellantTarunanganath Banerji
RespondentPremnarayanlal Raizada
Cases Referred and Khushali Ram v. Gokul Chand
Excerpt:
- .....in his plaint, the plaintiff has alleged that he was not served with any writ of summons in the nagpur suit, nor had he any knowledge of the institution of the suit and he makes the case that the decree in the nagpur suit was fraudulently obtained by the defendant on certain false representations, namely: (a) that it was the plaintiff who had appointed the defendant manager of the company, whereas, in fact, as the defendant knew, the plaintiff merely acted as an agent of the international commercial co., ltd., in the matter of the appointment; (b) the defendant had been appointed manager of the company at nagpur, whereas he had been merely appointed an agent of the company; and (c) a sum of rs. 500 had been paid to the company by the defendant as and by way of deposit, whereas rs. 300.....
Judgment:

Roy, J.

1. The plaintiff in this case sues for a declaration that the ex parte decree, dated the 21st day of June 1927, and made in Suit No. 2748 of 1926, of the Court of Small Causes, Nagpur, is inoperative and not binding on him, and for an order that the said decree should be set aside. He further claims a sum of Rs. 5,000 as damages suffered by him by reason of his arrest in execution of that decree. The plaintiff is a pleader of the District Court of Alipore and; ordinarily resides at No. 107/1, Mechuabazar Street. From 1st February 1926, to 18th June 1926 the plaintiff was employed as a manager of the International Commercial Co., Ltd., which had its office at No. 84-A, Clive Street, in Calcutta. On 7th May 1926 the plaintiff, as manager of the company, had, by a letter addressed to the defendant, appointed him the agent of the company at Nagpur, on a monthly remuneration of Rs. 50 from 10th May 1926.

2. On 21st March 1928 the plaintiff was arrested in Calcutta, by a bailiff of the Calcutta Court of Small Causes, in execution of a decree passed against him by the Court of Small Causes, Nagpur, on 21st June 1927. On the same day the plaintiff was released, on his depositing with the Registrar of the Court of Small Causes, Calcutta, a sum of Rs. 250, under protest. In his plaint, the plaintiff has alleged that he was not served with any writ of summons in the Nagpur suit, nor had he any knowledge of the institution of the suit and he makes the case that the decree in the Nagpur suit was fraudulently obtained by the defendant on certain false representations, namely: (a) that it was the plaintiff who had appointed the defendant manager of the company, whereas, in fact, as the defendant knew, the plaintiff merely acted as an agent of the International Commercial Co., Ltd., in the matter of the appointment; (b) the defendant had been appointed manager of the company at Nagpur, whereas he had been merely appointed an agent of the company; and (c) a sum of Rs. 500 had been paid to the company by the defendant as and by way of deposit, whereas Rs. 300 only had been paid, and that for the purpose of investing in shares of the company. The plaintiff further alleged that the service of the writ of summons was fraudulently suppressed by the defendant and no notice was served on the plaintiff prior to his arrest.

3. The plaintiff's case is that the defendant had knowingly given a false address of the plaintiff in the Nagpur Court and had falsely stated in the Nagpur plaint that notice of termination of the defendant's services was given to the plaintiff on 26th August 1926. The plaintiff complains that the defendant had fraudulently procured his arrest in execution of the decree by making false allegations in a petition filed by the defendant in the Court of Small Causes, Calcutta, dated 20th March 1928, to the effect that the plaintiff had delayed payment and was about to leave the jurisdiction of the Court of Small Causes, Calcutta, to avoid the execution of the decree.

4. In para. 1 of the written statement, the defendant denies all the allegations contained in the plaint. He then goes on to say that he had no knowledge that the plaintiff ordinarily resided at No. 107/1, Mechuabazar. Street, Calcutta, and that the only address of the plaintiff known to the defendant at the time when he instituted the suit in the Court of Small Causes, Nagpur, was that of the plaintiff's place of business at 84-A, Clive Street. He denies that the plaintiff was really an employee in the International Commercial Co., Ltd., or that his services were dispensed with on 18th June 1926, or that after that date the plaintiff ceased to have any connexion with the said corporation or its affairs. The defendant's case is that the plaintiff had represented to him that the plaintiff was the principal and all in all of the company, that the plaintiff had induced the defendant to enter into a contract of service with the plaintiff in his individual capacity, and on false pretexts had led the defendant to part with Rs. 500 an the understanding that the money would be refunded on the termination of the defendant's services. The defendant alleged that he gave a notice to the plaintiff on 26th August 1926, signifying his intention not to serve the plaintiff any longer and demanding the return of the Rs. 500. As the plaintiff failed to pay the defendant's dues in spite of repeated demands, the defendant was, on 10th October 1926, compelled to file a suit in the Court of Small Causes, Nagpur, for the recovery of Rs. 632-3-0 due from the plaintiff. He asserted that the summons in the suit was duly served on the plaintiff and he denied that the decree had been obtained by fraud.

5. After the passing of the decree and in March 1928 the defendant alleges he came from Nagpur and saw the plaintiff several times in Calcutta and asked him to pay off the decretal amount which the plaintiff had promised to pay. While at Calcutta, in March 1928, the defendant learnt that the plaintiff was going to leave the jurisdiction of the Court of Small Causes, Calcutta, and the defendant bona fide took steps to execute the decree which had been sent to the Court of Small Causes, Calcutta, for execution. The defendant denies that he had been guilty of any wrongful conduct in taking steps in execution. The defendant has submitted that this Court has no jurisdiction to entertain this suit. On these pleadings certain issues were submitted and accepted on behalf of the parties, which I need not set out here.

6. The main questions for determination are whether the decree passed on 21st June 1927 was obtained by fraud and whether this Court has jurisdiction to try this suit. Learned counsel on behalf of the plaintiff has sought to attack the decree, broadly speaking, on the grounds: (a) that the claim against the plaintiff in the Nagpur suit was a false claim founded on false allegations and the defendant knew that he had no cause of action against the plaintiff; and (b) that the defendant had fraudulently suppressed the service of the writ of summons and had knowingly given a false address to the Nagpur Court for service of the writ on the plaintiff. (His Lordship after considering the oral evidence which was not satisfactory proceeded to consider the documentary evidence.) The plaintiff has tendered a certified copy of the plaint and the order sheet in the Nagpur suit as also a certified copy of the writ of summons alleged to have been served on the plaintiff. An examination of the plaint shows that there were two defendants in the Nagpur suit: (1) The Managing Director, the International Commercial Co. Ltd., 84/A, Clive Street, Calcutta, (2) T.N. Banerji, Manager of defendant 1; and the claim was for the recovery of a sum of Rs. 632-3, details of which were given. No separate address was given of defendant 2 in the plaint.

7. The writ of summons which was issued was addressed to T.N. Banerji, c/o The International Commercial Co, Ltd., 84/A, Clive Street, Calcutta. On the back of the writ there is an endorsement by the bailiff of the Court of Small Causes, Calcutta, to the effect that on 27th November 1926, ho served the summons on the defendant's assistant,. who accepted service but refused to sign the original, at No. 84/A, Clive Street, Calcutta. It is rather difficult to understand how, when the evidence shows that the writ against the Managing Director of the company, who was defendant 1 to the suit, was returned unserved on 19th November, with a report that the business of the company had been closed, there could have been any service of the writ on Banerji at the office of the company. The order sheet makes it clear that, on 11th February 1927, the present defendant had taken time to make inquiries with regard to the company and that a fresh summons was taken out for service on defendant 1 in the Nagpur suit on. 10th March 1927, which was made returnable on 21st June 1927. On 21st June 1927, the plaintiff gave up his claim against defendant 1 and obtained an ex parte decree against Banerji. (His Lordship then discussed the merits of the Nagpur suit and proceeded). With regard to the question as to whether the defendant knew the plaintiff's residential address at the time when he instituted his suit in the Nagpur Court, I must say I am unable to accept Banerji's story that the defendant had seen the plaintiff's private address in some book or paper of the company when the defendant had interviewed the plaintiff prior to his appointment and, on the evidence, I am not prepared to hold that Raizada knew the plaintiff's residential address prior to the passing of the decree. I see no reason for refusing to accept Raizada's positive testimony that the only address of Banerji known to him at the time of the institution of the Nagpur suit was the address at 84/A, Clive Street. (His Lordship then considered the contentions of the parties and proceeded). I do not think, on the authorities, there can be any real doubt that the mere fact that the claim, on which the prior decree has been passed is a false claim or that the decree had been obtained on perjured evidence is any ground for setting aside a decree. Muktamala Dasi v. Ram Chandra, Dey : AIR1927Cal84 . Nor is there any question that a fresh suit will not lie to set aside a decree on the ground of mere non-service of summons. Narsingh Das v. Rafikan (1910) 37 Cal 197.

8. I do not propose to review all the cases bearing on this subject, nor to discuss in detail the authorities cited before me. I think I should be guided by the principle laid down in Mahomed Golab v. Mahomed Sulliman (1894) 21 Cal 612. In my view, the plaintiff in this case will only be entitled to have the Nagpur decree set aside if he can satisfy the Court that the decree had been obtained by fraud practised by the defendant and that the plaintiff was prevented by reason of the defendant's fraud from placing his case before the Nagpur Court. On the facts, I have come to the conclusion that the plaintiff has failed to make out his case. As I have already indicated, I am unable to hold that the defendant, at the time of the institution of the Nagpur suit, knew that the plaintiff's connexion with the company had ceased or that the writ of summons on Banerji could not be served at 84/A, Clive Street, nor am I prepared to hold that the defendant had come to know the plaintiff's residential address at any time prior to the passing of the decree. I hold that Raizada was not guilty of knowingly giving a false address of the plaintiff to the Nagpur Court or of fraudulently suppressing service of summons. The writ of summons in the Nagpur suit was, in the ordinary course, transmitted by the Nagpur Court to the Calcutta Court of Small Causes for service on Banerji at the address given on it and the return of the bailiff of the Calcutta Court of Small Causes purports to show that service was in fact effected on one of Banerji's assistants at 84/A, Clive Street.

9. It has not been shewn, nor attempted to be shewn, that Raizada had anything to do with the actual service of the summons on Banerji, nor has there been any suggestion made that Raizada had procured a false return of service. I think Raizada is well entitled to take his stand on the fact that the return of the Calcutta Court of Small Causes showed that the summons had been served and that the Court at Nagpur had chosen to accept the service of summons in the manner indicated on the return as good service and had proceeded to pass a decree on that footing. To my mind, the question as to whether Raizada gave a false address for service on Banerji or an address which he may have had reason to believe was not the correct address cannot affect the position very much. If a plaintiff in an action gives a wrong address of the defendant and takes no part in serving the summons on the defendant, the giving of the wrong address by itself would 'not prevent the defendant from appearing before the Court to defend the suit. In such a ease, in the normal course of events, the summons should come back unserved and, in the absence of proof that the summons had been duly served, no Court would pass a decree. There-turn of the bailiff of the Calcutta Court of Small Causes does show that service was effected on Banerji in a certain manner. The Nagpur Court has accepted it as good service on Banerji and has thought fit to pass a decree on that footing. Once it is conceded that Raizada had nothing whatsoever to do with the actual serving of the summons, it becomes evident that he cannot be charged with having deliberately suppressed the service of summons or having obtained the decree by fraud, even though he may have had some cause for suspecting that the service effected on Banerji at 84/A, Clive Street, might not have been good service.

10. In my judgment, the decree of the Nagpur Court was not obtained by fraud and cannot be set aside. The plaintiff has not been able to prove that there has been fraudulent suppression of summons or that he was prevented by reason of any fraud on the part of the defendant from placing his case before the Nagpur Court. I regret very much the conclusion to which I have come, as I cannot help feeling that Banerji had no opportunity of contesting the Nagpur suit and that he had a substantial defence to put forward. I think that, if an application had been made to the Nagpur Court under the provisions of Order 9, Rule 13, Civil P.C., the ex parte decree, made by that Court, would, in all probability, have been set aside. The plaintiff however has chosen not to go to the Nagpur Court and has sought to set aside the decree in this suit, on the ground that it had been obtained by fraud. I have held that he has failed to make out his case and the consequence is that the decree stands. Learned counsel for the defendant had raised a point as to the jurisdiction of the Court to entertain this suit. I do not think there is any substance in that point. The cases Indian Provident Co. Ltd. v. Govinda Chandra Das AIR 1923 Cal 425 and Khushali Ram v. Gokul Chand (1917) 39 All 607 furnish clear authority that this Court has jurisdiction on the facts of this case and I hold accordingly. Mr. Hazra for the plaintiff admitted, at the very outset, that the plaintiff's claim, in so far as it relates to damages for wrongful arrest, must depend on the plaintiff succeeding in having the Nagpur decree set aside on the ground of fraud. Having regard to the conclusions I have arrived at, there can be no question therefore of the plaintiff getting any decree for damages. In the result, the suit fails and must be dismissed with costs.


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